Planned
Parenthood of Indiana and Kentucky sued the state in May, seeking a
preliminary injunction to stop the law from taking effect July 1, arguing
it is unconstitutional and violates women's privacy rights.
The law would ban
abortions sought due to fetal genetic abnormalities, such as Down
syndrome, or because of the race, sex or ancestry of a fetus. If upheld,
Indiana would join North Dakota as the only two states to ban abortions
sought due to genetic fetal abnormalities.
U.S. District
Court Judge Tanya Walton Pratt said during Tuesday's hearing on the
injunction request that it appeared clear the new law would invade the
privacy of some women by preventing them from getting an abortion.
"How can it be
described as anything but a prohibition on the right to an abortion?"
Pratt asked Indiana Solicitor General Thomas Fisher during the hour-long
hearing.
Fisher said the
new law is a response to DNA testing advances that permit fetuses to be
screened for genetic defects or to determine their sex. He said the state
has an interest in "preventing discrimination" against fetuses slated for
abortion based on such test results.
Fisher said the
case before Pratt "is about understanding the limits" of the U.S. Supreme
Court's landmark 1973 Roe v. Wade decision upholding a woman's right to an
abortion and its 1992 Planned Parenthood v. Casey ruling which found
states generally can regulate abortion unless doing so places an undue
burden on women.
"We acknowledge
that in many respects this case is the first of its kind," he told Pratt.
The American
Civil Liberties Union of Indiana joined Planned Parenthood in challenging
the new law. Its legal director, Ken Falk, is representing Planned
Parenthood in the case.
Falk told Pratt
that Indiana's law is clearly unconstitutional under the high court's
abortion rulings.
"The point is,
what we are talking about is the right to privacy, the right to make this
very personal decision without interference from the state," he said.
If the law takes
effect, Falk said women seeking an abortion because test results show
their fetus may have a genetic defect, or women who don't want to have a
child due to their own genetic predisposition to a serious illness would
not be able to get one in Indiana.
Republican Gov.
Mike Pence signed the measure in March after it was approved by Indiana's
Republican-dominated Legislature. The measure passed over the objections
of many female legislators, including Republicans, who said it would go
too far.
Indiana's law
would also require that aborted fetuses be disposed of through burial or
cremation. Planned Parenthood is also challenging the fetal disposal
provision, as is Indiana University in a separate lawsuit which argues
that it would prevent its scientists from acquiring fetal tissue for
scientific research and sharing it with other institutions.
Falk said Planned
Parenthood currently disposes of aborted fetuses by incineration. He said
aborted fetuses are not considered human beings and they should be
destroyed in the same manner by which an amputated arm or other tissue
removed through surgery is destroyed.
Pratt said she
would rule "very soon," with a decision coming before July 1.
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